EEOC: Criminal background checks cannot be used to discriminate in hiring

The use of criminal background checks to disqualify job applicants, whether anything in the applicant’s record is relevant to the job or not, has been a rising trend over the last few years. It has recently reached such a level that the federal Equal Employment Opportunity Commission (EEOC) weighed in on the matter today. And they weighed in solidly on the side of workers across the country. These tactics have a huge impact on minority communities because of police and prosecutor practices that lead to overrepresentation of minority communities in the criminal justice system, and they have an especially high impact on transgender people and transgender people of color.

Today, the EEOC took an important step in stopping this form of discrimination by issuing updated guidance clarifying that it is a violation of the federal civil rights laws to use criminal background checks in a manner that discriminates on the basis of race, color, religion, sex or national origin.

This comes just days after the EEOC announced in a game-changing ruling for transgender employment rights that the prohibition on sex-based discrimination found in Title VII of the Civil Rights Act of 1964 includes a prohibition from employers discriminating on the basis of gender identity.

What does this mean for transgender people?

We know from Injustice at Every Turn, the groundbreaking report from the National Transgender Discrimination Survey that the National Gay and Lesbian Task Force and the National Center for Transgender Equality published last year, that transgender people face double the rate of unemployment compared to the general population, with rates for people of color up to four times the national unemployment average.

We also know that sixteen percent (16%) of transgender people reported having been incarcerated, with black (47%), American Indian (30%), and Latino/a (25%) respondents at highest risk for going to jail/prison. Compare the rates of transgender people who have been imprisoned to the general U.S. population, which sits at just 2.7% having been imprisoned at some point in life, and we see that disqualifying employees on the basis of a criminal history has a disproportionate impact on transgender people, especially transgender people of color.

In short, today’s announcement clarifies that employers cannot use criminal background checks to discriminate against employees or potential employees unless they can prove that the criminal background actually disqualifies the applicant for the job. It is important to clarify a few things about today’s guidance, though.

• Employers are allowed to disqualify people from positions based on criminal history, but only if the employer can show that the exclusion is “job related and consistent with business necessity.”
• This means that employers may still require you to submit to a criminal background check, but employers CANNOT use the criminal background check in a discriminatory way.
• Employers CANNOT use the practice if it operates to disproportionately and unjustifiably exclude people of a particular protected class.
• And since the EEOC recently announced that transgender people are protected under sex-based protections in federal civil rights laws, transgender people are protected from this form of discrimination in hiring.

For more information on today’s announcement, the EEOC put out a press release and a questions-and-answers document that provides helpful information about the ruling.